On 10/24/2018, Marshall Edelman, Attorney, argued in front of the Missouri Supreme Court regarding novel issues in Missouri Workers’ Compensation. He appeared with his father, Ronald D. Edelman, Attorney. This is the first challenge to the interpretation and constitutionality of the 2014 amendment to the Missouri work comp system involving enhanced permanent partial disabilities against the Second Injury Fund.

Our office is challenging the law because it is the right thing to do and, if successful, will benefit all Missourians. The Fund has taken the position that injured workers are not entitled to enhanced permanent partial disability benefits from the Fund for primary injuries after 1/1/2014. We disagree. This sends a signal to employers that they have more incentive to discriminate against those persons with preexisting disabilities who can actually work than those that can’t. This is not a rational basis.

The decision in this case, Cosby v. Treasurer of Missouri, SC97317, will affect nearly every employer and employee in Missouri. This case was recently featured in the news. Click here to read the article. Marshall is honored to be featured in Mizzou Law School’s newsletter regarding this. Click here to read Mizzou Law’s newsletter.

This case was also featured twice in the Missouri Lawyers Weekly . Click here for the first article titled, “Injury Fund fix headed to Supreme Court” and click here for the second article titled “Supreme Court asked to untangle Injury Fund fix.” (Subscription newspaper may require login)

The Law Firm of Ronald D. Edelman, Attorney along with associates Marshall Edelman and Steven Edelman are handling the case in Missouri which is challenging the constitutionality and interpretation of enhanced permanent partial disability benefits against the Missouri Second Injury Fund. To our knowledge it is the first and only case to do so. We are therefore informing both claimants and practitioners as to the following.

On 1/1/2014, Missouri work comp law section 287.220 was changed. The interpretation and constitutionality of the change is now in dispute. This section of the work comp law has provided benefits since the 1940s from the Second Injury Fund. The Fund is managed by the Missouri State Treasurer.

The Fund was created to pay for injured workers additional benefits for the combinational effects of certain pre-existing injuries and a new work injury. It does not matter whether the pre-existing injury was work related.

The reason why the Fund was created has been clear for nearly three quarters of a century. The courts announced the Fund was created by the Legislature to encourage employers to hire handicapped persons. Federal Mut. Ins. Co. v. Carpenter, 371 S.W.2d 955 (Mo 1963). The focus of the Fund is to compensate for the potential that a “previous injury” would give rise to prospective employer’s incentive to discriminate.Wuebbeling v. West County Drywall, 898 S.W.2d 615,, 620 (Mo. App. E.D. 1995)

The Fund has taken the position that the change of Missouri Work Comp law section 287.220.2(3) eliminated permanent partial disability claims against the Fund after 1/1/2014.

On 8/16/2017, the Labor and Industrial Relations Commission for the Missouri Department of Labor that hears appeals of Workers’ Compensation matters issued an award in Douglas Cosby v. Drake Carpentry Inc. (LIRC 14-003644) denying compensation for a claim against the Fund for permanent partial disability involving a primary injury that occurred after 1/1/2014.

The Commission stated in Cosby that rather than extinguishing any rights or removing any existing remedy, the legislature shifted back to the employer and their insurers any liability that would have otherwise rested with the Second Injury Fund

The Commission stated, “In our view, the 2013 amendments to 287.220 work the effect that employer and their insurers are now liable for any enhanced permanent partial disability that results from the synergistic combination of pre-existing disabilities and primary injuries occurring after January 1, 2014, as the legislature has clearly removed from employers the prior protections of the Second Injury Fund for these kind of synergistic injuries.

The Commission cited the case of Fed. Mut. Ins. Co. v. Carpenter, 371 S.W.2d 955, 957 (Mo. 1963) that states, “”in the absence of an apportionment statute or second injury fund legislation, the employer is liable for the entire disability resulting from a compensable injury.”

Based on the Cosby Commission decision, the EMPLOYER is now responsible for enhanced combinational PPD benefits.

It can also be interpreted that any PTD combinational benefits that used to rest with the Fund but no longer do because of the more rigorous guidelines are now the responsibility of the Employer.

This case is currently on appeal by our office. The Commission decision can be found on their website here.

Happy Eclipse day! Here are some helpful links. Subtract 5 from the UT time to get central time zone. Totality is at 1:18pm at our office.

Please be safe on the roads and at work. We hope no one gets hurt during this event but if you are injured on or off the job during the eclipse you may have a claim. Insurance blogs have already posted about the workers’ compensation health and safety risks of the eclipse on employees.

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Edelman Law Office

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